Fitzgerald v. Faunce

The opinion of the court was delivered by Depue, J. The case was tried below, and argued here principally upon the nature and quality of the rights which the owners of lands lying on the Delaware river on tide-water have in the fisheries in front of their lands. The legislative and judicial departments of the government have from an early period recognized a property in the riparian owners in the fisheries adjacent to their lands lying upon the tide-waters of the Delaware, which is exclusive of the common right of fishery which subsists at common law in all public waters. What the nature and quality of this property is, and whether it is superior to, or subordinate to, the title of the state in lands under tide-waters, need not be decided in this case. There are other questions to be disposed of before that question can arise. A preliminary question is presented whether the plaintiff ‘ has such a grant from the state as will give him a standing to enable him to set up the rights of the state against the right of Christian Faunce under the Whitall deed. He could acquire such a standing only in virtue of a grant by the riparian commissioners, which the commissioners were empowered to make under the statutes authorizing them to grant and convey lands of the state under water. — 592 — The Wharf act of 1851 gave to the boards of chosen freeholders of the several counties the power to license owners of lands situate on or upon tide-waters, to build docks or wharves in front of their lands, or in any other way to improve the same. Rev., p. 1240. The Riparian act of 1869 conferred on the riparian commissioners a more extensive power over the state’s lands under tide waters than was conferred upon the boards of chosen freeholders by the Wharf act of 1851. It gave the riparian commissioners power to make grants or leases of the state’s lands to persons other than riparian owners. Rev., p. 982, § 8. But the privileges of riparian owners are carefully preserved by the proviso in section 8, “ that no grant or license-shall be granted to any other than a riparian proprietor, until six calendar months after the riparian proprietor shall have been personally notified in writing by the applicant for.such grant or license, and shall have neglected to apply for the grant or license, and neglected to pay, or secure to be paid, the price that said commissioners shall have fixed,” with provisions for the mode of service of notice on minors, corporations and non-residents. The Riparian act of 1869 applies only to the tide-waters of the Hudson river, New York bay and the Kill von Kull, lying between Enyard’s dock, on the Kill von Kull, and the New York state line. That such is the entire scope of the act is clear from its provisions. The act of April 13 th, 1864, to which the Riparian act of 1869 is a supplement, provided for the appointment of commissioners to cause surveys to be made of the “ lands lyjng under the waters of the bay of New York and of the Hudson river, and of the lands adjacent thereto; the Kill von Kull, Newark bay, Arthur’s Kill, Raritan bay, and the lands lying under the water of the Delaware river opposite to the county of Philadelphia, * * * and to fix and establish an exterior line in said bays and rivers beyond which no pier, wharf, bulkhead, erection or permanent obstruction of any kind, should be permitted to be made, and to report to the next legislature, on or before — 593 — the 1st day of February then next, * * * and to have prepared, and submit with their report, maps of said land exhibiting the exterior line fixed and established by them in said bays and rivers.” Rev., p. 981. The commissioners made their report, dated February 1st, 1865, but no action was taken upon their report u ntil the supplement of 1869 was passed. By the first section of the latter act the bulkhead line, or lines of solid filling, and the pier lines in the tide-waters of the Hudson river, New York bay and Kill von Kull, lying between Enyard’s dock, on the Kill von Kull, and the New York state line, so far as they had been recommended and reported to the legislature by the commissioners, were adopted and declared to be fixed and' established as the exterior bulkhead and pier lines between the points above named. No action was taken by the legislature adopting exterior lines elsewhere. The second section provided that it shall not be lawful to fill in with earth, stones or other solid material in the tide-waters of the Hudson river, New York bay and Kill von Kull beyond the bulkhead line, or lines of solid filling, by this act adopted, fixed and established, laid down and exhibited on the aforesaid maps, and that it should not be lawful to erect or maintain any pier or other structure exterior to the said bulkhead line, or lines of solid filling, in any place or places where no exterior line for piers is reported or indicated by said maps on the Hudson river, New York bay and Kill von Kull. By the third section the Wharf act of 1851 was repealed as to the tide-waters of the Hudson river, New York bay and Kill von Kull. Elsewhere the Wharf act was left in force. The fourth section gave the commissioners authority to give to any person or corporation who, by any legislative act, was a grantee or licensee of lands under water, or had power or authority to acquire such lands, a paper in the name of the State of New Jersey, conveying such lands, capable of being acknowledged and recorded, with a proviso that the commissioners should in no case grant lands under water beyond the exterior lines by said act established, or thereafter to be established by leg — 594 — islative authority. The eighth section, which has already been referred to, and is the only remaining section conferring on the commissioners power to grant lands of the state under water, makes such grants subject to the regulations and provisions of the first and second sections of the act—that is, to the bulkhead line, and lines of solid filling, in the Hudson river, New York bay and Kill von Kull, established by said sections; and in the proviso, with respect to notice to non-resident riparian owners, the notice is required to be published in a daily newspaper published in Hudson county, and also in a daily newspaper published in New York city. • The provisions of the act of 1869 are wholly inapplicable to lands of the state under water elsewhere than within the limits designated in the act. Provision was made for grants of the state’s lands under tide-waters by the riparian commissioners elsewhere than within the territory named in the act of 1869, by an act passed March 21st, 1871, which provided that any riparian-'owner of lands on tide-waters in the state might apply to the riparian commissioners for a lease, grant or conveyance of lands under water in front of his lands, and the commissioners were authorized to make such lease, grant or conveyance, to be executed as directed by the act of 1869, which should vest in the lessee or grantee all the right of the state in such lands, with proviso that nothing in the act should interfere with the prior acts as to the waters of the Hudson river, New York bay or Kill von Kull, easterly to Enyard’s dock. Rev., p. 985. The power of the riparian commissioners to make grants of the state’s lands under water, under the act of 1871, is more restricted than it is under the act of 1869. Under the act of 1871 no one but a riparian owner can apply, and a grant by the commissioners to any one else would be ultra vires. In this respect the act of 1871 is analogous to the Wharf act of 1851. The words, “owner of lands situate along or upon tide-waters,” in the act of 1851, and “riparian owner,” in the act of 1871, are identical in meaning. In State v. Brown, 3 Dutcher 13, a construction of the act of 1851 was made by the Supreme Court, which ap — 595 — plies to the act of 1871. The facts in that case were these: Brown’s title, which he acquired from one Merselis, was described as bounded on the New York bay. In his deed certain lands conveyed by Merselis to the Morris Canal and Banking Company were excepted. The conveyance to the canal company described the lands conveyed as lying in the vicinity of, and on the margin of New York bay—terms importing a boundary on the bay—and was to the canal company, their successors and assigns, “as long as used for a canal.” Brown obtained a license from the board of freeholders to wharf out, and the question before the Supreme Court was whether the canal company had such title in the land as deprived Brown of the right to obtain a license for, and build a wharf in front on his farm. The Supreme Court, Chief Justice Green delivering the opinion, held that although the conveyance to the canal company was of a right to use the lands for a particular purpose only, and the grantee was restricted to that use of the estate, the company was the owner in fee of the land while the estate continued, and that although the canal company might have no right to build docks or wharves, the company, under its title, might prevent any other person from building docks and wharves in front of its land. State v. Brown was reversed on error in this court, but not with respect to the ground on which it was decided in the Supreme Court. Indeed, Mr. Justice Whelpley, who delivered the reversing opinion, gave expression to substantially the same views, for he said that “ the granting of the license to Brown conferred on him no right to dock out, unless he was the owner of the shore, and is of no use to him unless he is; his license is conditional, dependent upon his title; if he should undertake under that license to build the improvement authorized * * * it would be no protection against the legal owner of the shore.” The reversal was on the ground that the question whether Brown was shore-owner or not could be determined only by a trial involving the merits of the case. Brown v. Morris Canal, 3 Dutcher 648. In the present case the proof is that the Whitall tract con — 596 — sisted in part of meadow land originally subject to the overflow of tides, and in part of upland, extending down to and forming a natural bank along the river, and that before the deed to Faunce was made, in 1818, an embankment had been-constructed between high and low-water mark along the meadow front. This embankment was constructed for the purpose of excluding the overflow of tides from the lowlands^, and consisted of earth, and was faced with stones along the river front, and was such a reclamation as, under G-ough v. Bell, gave the riparian owner title to the extent of the reclamation. The embankment is seven or eight feet high, from twelve to’ sixteen feet wide at the bottom and about four feet wide at the’ top. Ordinary high tides rise to one-third of the height of the embankment, and extraordinary tides within two feet of the top. The embankment is used in fishing as a landing for nets, and one of the capstans for drawing in the nets is-located on the top of the embankment. The operative words of conveyance in the deed from Whit-all to Christian Faunce are “ grant, bargain, sell, release and confirm,” with appropriate words to convey a fee. The premises conveyed are described as “ the sole right, privilege, use and enjoyment at all times for all. purposes of fishing whatsoever, and for no other purpose,” followed by a description of the lands embraced in the conveyance by metes and bounds. The deed gave the grantee the right to occupy the lands, and there is no restriction on the manner in which he should use them, other than generally for' the purpose for which they were conveyed. The use and enjoyment of the lands by the grantee, for the purpose for which they were granted, is exclusive. The deed to Faunce conveyed to him an actual estate, and not a mere license or easement. A grant of the exclusive use of lands, as it excludes the grantor from all benefit in it, is a grant of the soil itself, and not a mere easement. Godd. Easem. 5. In Buszard v. Capel, 8 B. & C. 141, Lord Tenterden said that “ it is difficult to understand how the exclusive — 597 — -use could be demised, and the land not;” and in the same case, in the Exchequer Chamber, Alexander, L. C. B., said ^‘it is agreed that the finding of the jury—that the exclusive use of the land was demised, but the land itself was not demised—was inconsistent, because a grant of the exclusive use of the land is a grant of the land.” Capel v. Buszard, 3 Y. & J. 356. The verdict in that case was sustained, it appearing by the indenture, which was' made part of the verdict, that the wharf only was conveyed with free liberty to load and land goods in common with other tenants over the lands in question. Words of license or permission to occupy, or to enjoy, or to use are a demise of an actual estate in the lands. 2 Platt Leas. 23; 5 Bac. Abr., tit. “Leases,” K, 601; Anon., 11 Mod. 42; 15 Fin. Abr., “License,” A, 92. A devise of the use of lands is a devise of an estate in lands. Hance v. West, 3 Vroom 233. Conveyances to railroad, land and water companies, and to mining companies for a special use, as, for instance, for a depot, or for the accommodation and victualing of passengers; for a rail or tramway, for a canal or raceway, and of minerals and ores, are not uncommon. ■Such conveyances are always regarded as conveyances of estates in lands; and if the words of conveyance are adopted to convey a fee, the estate granted will be a fee, though the grantee is restricted in the use of the estate conveyed. Southard v. C. R. R. Co., 2 Dutcher 13; Cornelius v. Ivins, Id. 377; State v. Brown, 3 Id: 13; McKelway v. Seymour, 5 Id. 321; Hartwell v. Camman, 2 Stockt. 128; Zinc Co. v. Franklinite Co., 2 Beas. 322, 341, 342; S. C., 2 McCart. 418; Caldwell v. Fulton, 31 Penna. St. 475-479. The description of the premises conveyed to Faunce is ■from a beginning corner to the middle of the meadow bank; thence along the middle of the bank, the several courses and distances designated, until the line strikes the natural bank, which is a high piece of land; thence to a stone near the river, and from thence out into the river to low-water mark. By this description Faunce took an estate in fee in the one-half of the bank, and in the strip of land, next to the river, — 598 — and became riparian owner. If his estate was so qualified as-to the use, that he could not make available to himself a grant under the act of 1871, the intervention of it between the upland and the river front would make the grant of the state to the plaintiff inoperative as against his title. It was so-decided in State v. Brown. In addition to the infirmity of the plaintiff’s title under the-state’s grant, arising from the fact that the defendant-, and those under whom he justified, were owners of the strip of land along the river front, there is another consideration which would make the plaintiff’s grant unavailing as against the defendant. The deed of Whitall to Faunce was earlier in time than his conveyance to Newbold, under whom the plaintiff claims. If Newbold is not chargeable with notice of Faunae’s deed by its record, his deed contained an exception and reservation of the rights of Faunce by express reference-to the Faunce deed. Newbold and those claiming under him are bound by this exception and reservation and cannot deny its binding force. Sheppard v. Hunt, 3 Green Ch. 277. Under the conveyance to him Newbold took only a contingent estate in the premises conveyed to Faunce, to take effect on the determination or forfeiture of the latter’s estate, but neither he nor his grantees could acquire a grant from che state which should work the forfeiture. Applying these principles to the case in hand, the exception principally relied on was to the judge’s charge, that as a matter of law the defendant had a right o-f fishery at the locus in quo, and was entitled to a verdict unless he did acts which did damage to the plaintiff that were not necessary in operating the fishery, and were outside of and beyond the rights and privileges of fishing granted to Christian Faunce in 1818 and in 1834 by the then land-owners. The judge in his charge had expressly told the jury that if the defendant either negligently or carelessly or intentionally damaged the plaintiff' unnecessarily, and beyond the privileges granted by Whitallon the upland, the jury should find for the plaintiff the amount of such damages. — 599 — This instruction was substantially correct, for by the law of this state owners of lands upon the Delaware river have a right of fishery adjacent to the shore front in their ownership, which is the subject of exclusive enjoyment and capable of alienation. This right, like other rights of riparian owners on the tide-waters of this state, is good against all persons except the state or its grantee; Stevens v. P. & N. R. P. Co., 5 Vroom 532, 553, and the plaintiff is not in position to set up against this right, the right of the state, if the state has any right superior to the right of the riparian owner on the Delaware river in such a fishery. The judge received in evidence, under objection, proof of conveyances and grants of other fisheries elsewhere along the river, and evidence touching the manner in which other fisheries were transferred and conveyed. This evidence, we think, was irrelevant, but the error in admitting it was immaterial, for the case stands upon the force and effect of the defendant’s title. The other exceptions have been examined, and in them we find no'error. The judgment should be affirmed. For affirmance—The Chancellor, Chief Justice, Depue, Dixon, Knapp, Reed, Scudder, Van Syckel, Brown, Cole, Paterson, Whitaker. 12. For reversal—None.